COURT OF APPEAL FOR ONTARIO

CITATION: Pirani v. Esmail, 2014 ONCA 279

DATE: 20140409

DOCKET: C55218

Weiler, Rouleau and Pepall JJ.A.

BETWEEN

Barkatali Nazarali Pirani

Plaintiff (Respondent)

and

Yasmin Esmail, Tajdin Esmail and Alnaz Ismail Jiwa

Defendants (Appellants)

Morris Cooper and Sabrina A. Bandali, for the appellants Yasmin Esmail and Tajdin Esmail

John Philpott, for the respondent

Alnaz Ismail Jiwa, acting in person

Heard: September 10, 2013

On appeal from the judgments of Justice Susan E. Greer of the Superior Court of Justice, dated February 22, 2012, with reasons reported at 2012 ONSC 992, and May 31, 2012, and her costs order dated June 29, 2012, with reasons reported at 2012 ONSC 3843.

COSTS ENDORSEMENT

[1] On February 26, 2014, this court rendered judgment in this matter allowing the appeal in part and allowing the cross-appeal. The court disposed of all costs issues with the exception of the trial costs of the cross-appellant. The court ruled that the cross-appellant was entitled to his trial costs but rejected his submission that these costs should be awarded on a substantial indemnity basis. The court asked the parties to provide brief written submissions as to the appropriate quantum of costs.

[2] In his submissions, Mr. Jiwa once again asks that he be awarded substantial indemnity costs. His request for substantial indemnity costs was rejected by the court and we see no basis to revisit that issue.

[3] As to the quantum of partial indemnity costs, Mr. Jiwa seeks $49,648.64.

[4] Mr. Jiwa was self-represented at trial. Because he is a lawyer he seeks recovery of virtually all of the time he spent dealing with the matter. In his bill of costs, he has applied what we assume is his regular hourly rate and then made adjustments to arrive at substantial and partial indemnity rates. He also seeks recovery for the time another lawyer and law clerks in his office spent dealing with the claim.

[5] The bulk of the claim is for Mr. Jiwa’s time. The respondent argues that virtually all of the time claimed by Mr. Jiwa was for time spent because he was a party. There is, in the respondent’s submission, little to suggest that the time being claimed was time when Mr. Jiwa was carrying out tasks requiring a lawyer. Further, Mr. Jiwa has not shown that any of the time spent was time lost to remunerative work. Finally, the respondent submits that the time claimed for activities such as research and document review is excessive. As a result, the respondent suggests a moderate award of costs in the amount of $1000.

[6] In my view the appropriate amount of costs lies somewhere between the submissions of the two parties. As explained by this court in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), lawyers who represent themselves in a lawsuit are entitled to costs. Self-represented litigants, however,

be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. … Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity.

[7] The bill of costs presented by Mr. Jiwa seeks recovery for virtually all of the time he and others in his office committed to the matter. He indicates in his submissions that the time he devoted to the lawsuit has had “significant financial implications when he could have spent time working on other files.”

[8] In our view, the trial issues in which Mr. Jiwa was involved were narrow and relatively straightforward. The bulk of the trial dealt with the dispute between the respondent and the Esmails and the amount of the claim advanced was relatively modest. From our review of the bill of costs, we also agree with the respondent that a significant amount of the time being claimed by Mr. Jiwa was for his participation as a party rather than as a lawyer. Taking all of this into account and weighing it against the fact that, inevitably, a significant amount of Mr. Jiwa’s time, and that of the other lawyer and the clerks, would have been devoted to work ordinarily done by a lawyer retained to conduct the litigation, we would award Mr. Jiwa trial costs fixed in the amount of $15,000 inclusive of HST and disbursements.

“K.M. Weiler J.A.”

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”